Madhya Pradesh High Court
Bheem @ Prakash vs The State Of Madhya Pradesh on 18 March, 2021
Author: Anjuli Palo
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench : Hon'ble Shri Justice Prakash Shrivastava, Judge
Hon'ble Smt. Justice Anjuli Palo, Judge
CRA No. 2208/2010
Bheem alias Prakash
s/o Sajjan Lal Belwanshi
Vs.
State of Madhya Pradesh
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Ms. Durgesh Gupta, Advocate for the appellant.
Shri Dileep Parihar, Panel Lawyer for the respondent/State.
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Whether approved for reporting :- -
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Law laid down :- -
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Significant Paragraphs : - -
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JUDGMENT
(18/03/2021)
Per : Smt. Anjuli Palo, J :-
Being aggrieved by the judgment dated 15.09.2010 passed by
the learned Sessions Judge, District Betul in ST No. 242/2009, this appeal
has been preferred by the appellant-accused who stands convicted under
Section 302 of the Indian Penal Code for committing murder of his wife-
Jyoti and sentenced to undergo life imprisonment with fine for Rs. 1,000/-
and further 6 months simple imprisonment in default of payment of fine.
2. Marriage of the appellant and deceased-Jyoti was solemnized
about 5 years prior to the incident and they were residing together. They
have a child (boy) aged about 3 years. It is not in dispute that deceased
Jyoti died due to burn injuries and the incident occurred at the house of the
appellant in his presence.
3. As per prosecution's case, on 22.05.2009 at about 11:30 pm
the appellant, under influence of alcohol, had a quarrel with his wife-Jyoti
(since deceased). He mocked and abused her for her tribal accent/language
and called her 'manhoos' (ill-omened). Thereafter, he poured kerosene oil
and set her ablaze. Later, while trying to save Jyoti, the appellant also
sustained some burn injuries. He brought her to the hospital, where she
was under treatment till 27.05.2009. Doctor recorded her dying declaration
on 23.05.2009. Meanwhile, she narrated the incident to the Police
Constable and lodged FIR and on the basis of the report, a criminal case
under Section 307 of the Indian Penal Code was registered against the
appellant. On 28.05.2009, she was shifted to Kasturba Hospital Sevagram
Varda where she died. Thereafter, police registered offence under Section
302 of the Indian Penal Code against the appellant and arrested him. After
investigation, charge-sheet was filed before the trial Court.
4. After committal of the case, learned trial Court conducted
trial and charge under Section 302 of the Indian Penal Code was framed
against the appellant. The appellant abjured his guilt and pleaded
innocence. He took the defence that the family members of the deceased
were not happy about their love marriage. They used to taunt the deceased
for having married the appellant who belongs to lower caste. Hence, he
was falsely implicated in the case by the family members of the deceased.
5. Learned trial Court found that the Dehati Nalishi / FIR report
(Ex.P/2) has been lodged by the deceased herself against the appellant for
offence under Section 307 of the Indian Penal Code. The report (Ex. P/2)
lodged by the deceased and her statement (Ex. P/4) were treated as dying
declaration under Section 32 of the Indian Evidence Act. On 23.05.2009
during the treatment, Dr. Rahul Shrivastav (PW-2) found that hair on the
head of the prosecutrix as well as her hands, chest, abdomen and legs were
burnt and she had sustained about 60-70% burn injury. Her condition was
critical.Hence, Dr. Rahul Shrivastav (PW-2) recorded her statement (Ex.
P/4). While recording the dying declaration (Ex. P/4), she was fit to give
statement. In both the dying declarations, the deceased has clearly stated
against the appellant that he poured kerosene oil on her on account of some
domestic quarrel and thereafter, set her ablaze. She sustained 53% burn
injuries on her body and was hospitalized for 5-6 days, thereafter, she
succumbed to the injuries and died due to septicemia. The postmortem
report (Ex. P/15) has been duly proved by the doctor. On the basis of the
above finding, trial Court convicted the appellant under Section 302 of the
IPC and sentenced him to life imprisonment.
6. Appellant has challenged the impugned judgment on the
ground that the findings recorded by the learned trial Court are contrary to
the evidence available on record. The evidence of Surendra Verma (PW-1)
who recorded the Dehati Nalishi (Ex.P/2) which is treated as dying
declaration, is not reliable. Further, Dr. Rahul Shrivastav (PW-2) has suo-
motu recorded the dying declaration without any instructions from the
police. At the time of recording of dying declaration (Ex. P/4) of the
deceased, Police Constable Laxman was present there but his signature has
not been taken on the dying declaration (Ex. P/4) as a witness to prove the
dying declaration.
7. Learned counsel for the appellant submits that the appellant
and deceased were in a love relation and they got married without the
consent of their families. He has been falsely implicated in the case due to
this reason by the parents of the deceased and he had no role in the death
of his wife. In fact, he tried to save her during the incident due to which he
himself sustained burn injuries and was admitted in the hospital for
treatment. Further, there is neither any independent witness nor any eye-
witness who has been examined by the prosecution in support of the case.
The prosecution has failed to prove the case against the appellant beyond
reasonable doubt.
8. The next contention of learned counsel for the appellant is
that the appellant was very affectionate towards his wife. Due to
some dispute/quarrel, the said incident took place. Appellant had no
intention to kill his wife and therefore, he tried to save her and
brought her to the hospital. Even if any offence was committed, it
would fall under the ambit of Section 304 Part II of the IPC and not
under Section 302 of the IPC. Hence, it is prayed that the impugned
judgment be set aside and appellant be acquitted from the charges
leveled against him. In this regard, learned counsel for the appellant has
relied upon the judgment rendered by the Supreme Court in case of
Maniben vs. State of Gujarat, (2009) 8 SCC 796 and the judgment
passed by the Division Bench of this Court in case of Ganesh Ram vs.
State of Madhya Pradesh, 2010(2) MPHT 350 (DB).
9. Learned Panel Lawyer appearing for the respondent/State
has supported the findings of learned trial Court and submitted that
the judgment is based on cogent and reliable evidence produced by
the prosecution.
10. Heard learned counsel for the parties at length and
perused the record.
11. In the present case, it is important to note that the
deceased was the wife of the appellant. She received burn injuries in
the house of the appellant in his presence. This fact has not been
challenged by the appellant in the cross-examination of the material
witnesses. Appellant has taken the defence that he himself received
some injuries while trying to save the life of his wife which proves the
presence of the appellant at the time of incident.
12. There are two dying declarations in this case which are
corroborative in nature. In both the dying declarations Exhibit P/2
and Exhibit P/4, the deceased has stated that the appellant under the
influence of alcohol, poured kerosene oil on her due to some domestic
dispute and ablazed her. Incident took place on 22.05.2009 at about
11:30 pm. In the FSL report (Ex. P/16), presence of kerosene oil was
detected on Article 'A'- a half-burnt cloth with some melted plastic
box and Article 'B' - a plastic container of 5 litres capacity. As per the
testimony of K.S.Chouhan (PW-8) Investigating Officer, the container
consisting of kerosene oil and the articles have been recovered from
the spot vide seizure memo (Ex. P/5). Appellant has not taken the
plea that his wife/deceased Jyoti committed suicide. The statements
of Mohan Lal (PW-5) and Salobai Panse (PW-10), who are the father
and mother of the deceased, are also found reliable and has
corroborated the dying declarations (Ex. P/2) and (Ex. P/4). The
deceased herself narrated them the incident that she was burnt by the
appellant. There is no contradiction in the evidence regarding the
injuries and cause of death of the deceased.
13. On perusal of the postmortem report (Ex. P/15) conducted
by Dr. B.U.Pawar (PW-11), the contention of the learned counsel for
the appellant cannot be accepted that her mouth was burnt, hence she
was unable to give her statement. Dr. Pawar (PW-11) has stated that
during the postmortem, he found that the deceased had received 53%
burn injuries on her body. In his cross-examination, he explained
that just after receiving the burn injuries, a victim may not be able to
talk or write, but after treatment, it may be possible for them to give
or sign statement. In his statement, he did not state anything
regarding the deceased being totally unable to give statement or sign
the papers.
14. On perusal of the dying declaration (Ex. P/4), it is seen
that Dr. Rahul Shrivastav (PW-2), who recorded the statement of the
deceased on 23.05.2009 at 1:40 pm, wrote an endorsement on the
dying declaration that the patient was fit to give statement from the
commencement to the end. Therefore, the learned trial Court rightly
believed both the dying declarations against the appellant and also
proved the death of the deceased.
15. Learned counsel for the appellant contended that in this
case there is no dying declaration recorded by the Executive
Magistrate. In our opinion, it is not necessary in every case as it
depends upon the circumstance of each case. Sometimes, doctors are
of the opinion that the patient may not survive for such length of time.
They are important witness to observe about the physical and mental
condition of the patient in the right perspective.
16. It is a settled law that conviction can be based solely on
the dying declaration. In cases of Ramesh & Ors. Vs. State of
Haryana [(2017) 1 SCC 529] and Pawan Kumar Vs. State of
Himachal Pradesh [(2017) 7 SCC 780], Hon'ble the Apex Court
held that if dying declaration is voluntary and reliable, no question of
tutoring arises then it can be made basis of conviction.
17. Further, the duty of conducting investigation impartially
with utmost honesty is cast upon the police personnel. When
Surendra Verma (PW-1) came to the hospital and found Jyoti in
critical condition, he registered Nalishi as per the facts narrated by her
against her husband in Ex. P/2. In paragraph 4 of the cross-
examination, Surendra Verma (PW-1) clearly stated that while
recording Dehati Nalishi (Ex. P/2), Jyoti was able to speak.
Therefore, we are unable to accept the contentions of the learned
counsel for the appellant that the dying declarations (Ex. P/2)
recorded by Surendra Verma (PW-1) and (Ex. P/4) recorded by Dr.
Rahul Shrivastav are liable to be disbelieved.
18. Be that as it may, from the perusal of evidence, it reveals
that the deceased received 53% burn injuries at the house of the
appellant in his presence due to his brutal act. But thereafter,
appellant himself tried to save her life and while doing so, he himself
received some injuries as corroborated by Surendra Verma (PW-1)
and Dr. Rahul Shrivastav (PW-2). The deceased was admitted in the
hospital for 5-6 days for treatment and thereafter she succumbed to
the injuries and died due to septicemia.
19. In the present case, it appears that there was a sudden
quarrel between the appellant & the deceased and the incident took
place in the heat of moment. In that view of the matter, in our
considered opinion, offence committed by the appellant would fall
under Section 304 Part I of IPC.
20. Consequently, the appeal filed by the appellant is partly
allowed. His conviction and sentence awarded by the trial Court
under Section 302 of IPC is hereby set aside. He is convicted under
Section 304 Part I of Indian Penal Code and sentenced to rigorous
imprisonment for 10 years.
21. Appellant is in jail since 24.06.2009. He has completed
jail sentence of more than 10 years. Hence, he shall be released
forthwith, if not required in any other case.
22. With the aforesaid direction, the appeal stands disposed
of.
23. Copy of this judgment along with the record be sent to the
Court below for information and compliance.
(Prakash Shrivastava) (Smt. Anjuli Palo)
Judge Judge
vidya
Digitally signed by
SREEVIDYA
Date: 2021.03.24
16:24:48 +05'30'
